Citation Nr: 0423584
Decision Date: 08/26/04 Archive Date: 09/01/04
DOCKET NO. 02-19 791 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to a disability evaluation for greater than
10 percent for degenerative arthritis of the right knee prior
to October 4, 2002.
2. Entitlement to a disability evaluation greater than 30
percent for status postoperative total right knee replacement
from December 1, 2003.
3. Entitlement to an increased evaluation for residuals of a
nasal fracture, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty from February 1967 to
September 1969 and from August 1971 to September 1983.
The Board of Veterans' Appeals (Board) notes that the issues
on appeal arose from Department of Veterans Affairs (VA)
Regional Office (RO) rating decisions dating from October
2001.
During the appeal period, the record shows that in a December
2002 rating decision the RO granted a temporary total 100
percent evaluation for right total knee replacement under
38 C.F.R. § 4.30 from October 4, 2002 to November 30, 2003,
with reduction to a 30 percent schedular evaluation effective
from December 1, 2003.
This appeal is Remanded to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify you if
further action is required on your part.
REMAND
This claim must be afforded expeditious treatment by the
Veterans Benefits Administration(VBA) AMC. The law requires
that all claims that are remanded by the Board or by the
United States Court of Appeals for Veterans Claims (CAVC) for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans' Benefits
Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002)
(Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs (or VBA AMC) to provide expeditious handling of all cases
that have been remanded by the Board and the CAVC. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
The CAVC has held that section 5103(a), as amended by the
VCAA of 2000 and § 3.159(b), as recently amended, require VA
to inform a claimant of which evidence VA will provide and
which evidence claimant is to provide, and remanding where VA
failed to do so. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002); see also 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a) (2003).
The Board observes that additional due process requirements
are applicable as a result of the enactment of the VCAA and
its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A and 5107 (West 2002) and 66 Fed. Reg. 45,620
(Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a)).
Also, the Board notes that in a July 2004 informal hearing
presentation, the veteran's representative requested that VA
afford the veteran a current ear, nose and throat (ENT)
examination since his last VA ENT examination was in November
2000. An examination would materially assist in the
adjudication of the pertinent issue on appeal.
The CAVC has held that the duty to assist the appellant in
obtaining and developing available facts and evidence to
support the claim includes obtaining adequate VA examination.
This duty is neither optional nor discretionary. Littke v.
Derwinski, 1 Vet. App. 90 (1990). This duty also includes
providing additional VA examinations by a specialist when
recommended. Hyder v. Derwinski, 1 Vet. App. 221 (1991).
To ensure that VA has met its duty to assist the veteran in
developing the facts pertinent to the claims on appeal and to
ensure full compliance with due process requirements, the
case is REMANDED to the VBA AMC for the following
development:
1. The veteran has the right to submit
additional evidence and argument on the
matters the Board has remanded to the VBA
AMC. Kutscherousky v. West, 12 Vet. App.
369 (1999).
2. The veteran should be contacted and
requested to identify all healthcare
providers, VA and non-VA, inpatient and
outpatient, who have treated him for his
service connected right knee disability
and/or residuals of a nasal fracture from
approximately November 2000 to the
present. He should be requested to
complete and return the appropriate
release forms so that VA can obtain any
identified evidence. All identified
private treatment records should be
requested directly from the healthcare
providers. Regardless of the veteran's
response, all outstanding VA treatment
reports should be obtained. All
information which is not duplicative of
evidence already received should be
associated with the claims file.
If any of the relevant records sought are
unobtainable, the veteran should be
notified of such fact and of the efforts
used to obtain those records, as well as
any further action to be taken with
respect to the claim.
3. The veteran's claims file must be
reviewed to ensure that all VCAA notice
obligations have been satisfied in
accordance with 38 U.S.C.A. §§ 5102,
5103, and 5103A (West 2002), Veterans
Benefits Act of 2003, Pub. L. 108-183
,§ 701, 117 Stat. 2651, ___ (Dec. 16,
2003) (to be codified at 38 U.S.C.A.
§ 5103), and any other applicable legal
precedent. Such notice should
specifically apprise the veteran of the
evidence and information necessary to
substantiate his claims of entitlement to
increased evaluations for service-
connected right knee disability and
residuals of a nasal fracture and inform
him whether he or VA bears the burden of
producing or obtaining that evidence or
information, and of the appropriate time
limitation within which to submit any
evidence or information. 38 U.S.C.A.
§ 5103(a) and (b) (West 2002); Quartuccio
v. Principi, 16 Vet. App. 183 (2002);
Charles v. Principi, 16 Vet. App. 370
(2002). A record of his notification
must be incorporated into the claims
file.
4. The veteran should be accorded a
special ENT examination by an appropriate
medical specialist in order to determine
the current nature and extent of severity
of his service-connected residuals of a
nasal fracture. The claims file and a
separate copy of this Remand must be made
available to and reviewed by the examiner
prior and pursuant to conduction and
completion of the examination. The
examiner must annotate the examination
reports that the claims file was in fact
made available for review in conjunction
with the examination. Any further
indicated special studies must be
conducted including sinus X-rays. The
examiner must identify all symptoms and
manifestations associated with residuals
of a nasal fracture.
5. Thereafter, the veteran's claims file
should reviewed to ensure that the above
requested development has been completed
in its entirety. In particular, the
requested examination report should be
reviewed to ensure that it is responsive
to and in complete compliance with the
directives of this remand and if not,
corrective procedures should be
implemented. The Board errs as a matter
of law when it fails to ensure
compliance, and further remand will be
mandated. See Stegall v. West , 11 Vet.
App. 268 (1998).
6. After undertaking any development
deemed appropriate in addition to that
specified above the veteran's claims of
entitlement to increased evaluations for
service-connected right knee disability
and residuals of a nasal fracture should
be readjudicated. The consideration of
the applicability of the provisions of
38 C.F.R.§ 3.321(b)(1) should be
documented.
If the benefits requested on appeal are not granted to the
appellant's satisfaction, the appellant and representative
should be issued a SSOC. The SSOC must contain notice of all
relevant actions taken on the claims for benefits, to include
a summary of the evidence and applicable law and regulations
pertaining to the issues currently on appeal. A reasonable
period of time for a response should be afforded.
Thereafter, the case should be returned to the Board for
further appellate review, if otherwise in order.
By this remand, the Board intimates no opinion as to any
final outcome warranted. No action is required of the
appellant until he is notified by the VBA AMC; however, the
appellant is hereby notified that failure to report for any
scheduled VA examination(s) without good cause shown may
adversely affect the outcome of his claim for an increased
evaluation. 38 C.F.R. § 3.655 (2003).
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).